HONBLE SRI JUSTICE SANJAY KUMAR AND HONBLE DR. JUSTICE B. SIVA SANKARA RAO
C.M.A.Nos.825 of 2014 and batch
04-07-2016
M/s.Bhargavi Real Estates Private Limited Petitioner
Kolanu Janardhana Reddy and others .Respondents
Counsel for the petitioners:Sri M.V.S. Suresh Kumar
Counsel for the respondents:Sri M. Achutha Reddy
<GIST:
>HEAD NOTE:
? Cases referred
1. AIR 2009 (NOC) 921 (MAD.)
2. (2015) 5 ALD 375
HONBLE SRI JUSTICE SANJAY KUMAR
AND
HONBLE DR. JUSTICE B. SIVA SANKARA RAO
C.M.A.Nos.825 & 826 of 2014
COMMON JUDGMENT: (Per Honble Sri Justice Dr. B. Siva Sankara Rao)
The appellant in CMA.No.825 of 2014 was the 4th defendant in
O.S.No.22 of 2011 on the file of I Additional District Judge, Nalgonda. The
appellant Nos.1 to 12 of CMA.No.826 of 2014 are the defendant Nos.17, 34,
45, 51, 54, 64, 75, 81, 84 to 87 in the above mentioned suit. The
4th defendant as petitioner in I.A.No.364 of 2014 and the other defendants
supra as petitioners in I.A.No.538 of 2014 maintained two applications
against the two plaintiffs by name K.Janardhan Reddy and Kolanu Rama
Swamy Reddy Memorial Trust, represented by said K.Janardhan Reddy and
by showing the other defendants out of 102 defendants in O.S.No.22 of
2011 as co-respondents, to set aside exparte decree dated 20.09.2012
passed against them respectively and permit them to contest the suit by
filing written statement.
2. The plaintiffs supra filed the suit against 102 defendants mentioned
supra for the reliefs of declaration of 1st plaintiff is absolute owner of the
plaint schedule property with consequential permanent injunction
restraining the defendants from interfering with so called possession of the
plaintiff over the plaint schedule property consisting of Ac.24-03 guntas
agricultural dry land in S.Nos.28/A of Ac.4-11 guntas, 55/AA of Ac.10-35
guntas and 65/A of Ac.8-37 guntas of Dandumalkapur Village of Choutuppal
Mandal, Nalgonda District within the boundaries prescribed respectively in
the schedule. In the array of the plaint as also can be seen from the copy
of plaint and the trial Courts decree dated 20.09.2012 in question, there is
nothing to show any of the 102 defendants are represented by any of the
power of attorney holders or agents. There is no separate address given to
any of the 102 defendants in the plaint long cause title as contemplated by
Order VII Rule 1 (b) & (c) CPC, but for showing as if all are C/o. S. Sudhakar
Reddy (6th defendant Manager, GM City, Dandumalkapur Village,
Choutuppal Mandal, Nalgonda District). There is no such description
contemplated to furnish so vaguely even from reading of clause (c) of
Order VII Rule 1 CPC and in fact Order VI Rule 14 A CPC mandates that the
pleadings filed by a party shall be accompanied in the statement by a
prescribed form, as provided in Rule 14, regarding the address of the party.
3. Order VI Rule 14 A CPC is as follows:
14A. Address for service of notice: (1) Every pleading,
when filed by a party, shall be accompanied by a statement in the
prescribed form, signed as provided in rule 14, regarding the
address of the party.
(2) Such address may, from time to time, be changed by lodging in
Court a form duly filled up and stating the new address of the party
and accompanied by a verified petition.
(3) The address furnished in the statement made sub-rule (1) shall
be called the "registered address" of the party, and shall, until duly
changed as aforesaid, be deemed to be the address of the party for
the purpose of service of all processes in the suit of in any appeal
from any decree or order therein made and for the purpose of
execution, and shall hold good, subject as aforesaid, for a period of
two years after the final determination of the cause or matter.
(4) Service of any process may be effected upon a party at his
registered address in all respects as though such party resided there
at.
(5) Where the registered address of a party is discovered by the
court to be incomplete, false or fictitious, the Court may, either on
its own motion, or on the application of any party, order
(a) in the case where such registered address was furnished
by a plaintiff, stay of the suit, or
(b) in the case where such registered address was furnished
by a defendant, his be struck out and he be placed in the same
position as if he had not put up and defence.
(6) Where a suit is stayed or a defence is struck out under sub- rule
(5), the plaintiff or, as the case may be, the defendant may, after
furnishing his true address, apply to the Court for an order to set
aside the order of stay or, as the case may be, the order striking
out the defence.
(7) the Court, if satisfied that the party was prevented by any
sufficient cause from filing the true address at the proper time,
shall set aside the order of stay or order striking out the defence,
on such term as to costs or otherwise as it thinks fit and shall
appoint a day for proceeding with the suit or defence, as the case
may be.
(8) Nothing in this rule shall prevent the Court from directing the
service of a process at any other address, if, for any reason, it
thinks fit to do so.
4. From reading of the Order VI Rule 14 A CPC supra, it is the duty of
the plaintiff while filing the plaint to furnish the registered addresses of
each of the defendants for purpose of service of all process in the suit with
any change of address known from time to time so as to effect the service
on the party respectively at the registered address for filing process to that
address. In fact, Sub Rule 5 of Order VI Rule 14 A CPC even shows not only
duty of the party from above but also duty of the Court that where the
address is incomplete or false or fictitious, the court may either on its own
motion or an application of any party where it is the plaintiff furnished the
address to stay the suit and where the address by the defendants, to struck
off his defence as if he did not put forth his defence and it is only after
furnishing the true and correct address to enable the party to apply to the
Court for an order to set aside the order of stay or order striking out the
defence, that too on showing to the satisfaction of the Court of party was
prevented by a sufficient cause from filing true address at the proper time,
leave about the power of Court to direct service of process at any other
source which it thinks fit from further reading of sub rules 6 to 8 of
Order VI Rule 14 A CPC supra. The plaint ought not to have been numbered
from the mandatory requirements for registered address required to be
furnished is not furnished with each of the defendants name, fathers name
and address to serve the process for securing appearance. Even numbered,
the Court could not have been allowed without furnishing the correct
address, to proceed with the matter for non-furnishing of the registered
address but for to stay the suit proceedings till such furnishing. It was not
done in the case on hand. It appears only on the C/o. address notice
served on the 6th defendant and there is no service individually much less
to the acknowledgment with proof on other defendants 1 to 102 other than
6th defendant supra respectively i.e., required for service contemplated by
Order V CPC either on the defendants or his agent if any duly recognized
contemplated by Order III CPC particularly Rule 6 of Order III CPC. It is not
even a pleading much less shown in the plaint anywhere including the long
cause title or short cause title of 6th defendant is agent as contemplated by
Order III Rule 6 CPC for other defendants among 1 to 102 supra. It is
pursuant to the service on 6th defendant, it appears he filed written
statement before the trial Court. The 6th defendant received the summons
only for himself and refused to receive the summons sent to him for other
defendants as in his care of address. It is not even the case of all other
defendants are residing with and in same premises of 6th defendant so to
mention or for the summons returned as refused by 6th defendant.
Therefrom also there are no summons served and the trial Court could not
set exparte all other defendants, but for directing to take notice afresh to
correct address by so furnishing. It is a wrong committed by the trial court
thereby in setting them exparte by unmindful of the provisions and fallen
pray to the deception of the plaintiffs on the Court.
5. The plaint filed was in June 2011 and the written statement of the
6th defendant filed was in the 1st week of August 2011, through his
advocate, that too while admitting the plaint contents as if 1st plaintiff is
absolute owner of the suit schedule property in saying 1st plaintiff
purchased from Cooperative Tenant Farming Society, Malkapur, to which
he was a member for valuable consideration and in possession and by
admitting other plaint averments as true including Para 8 and 9 saying
defendant Nos.7 to 102 have paid money for house sites to defendant Nos.1
to 5 and demanded the site manager to locate their plots in suit schedule
property, which is in the possession of the 2nd plaintiff and also by saying
plaint Para 10 averments of plaint are all true, however ultimately in
saying to dismiss the suit with costs. If at all the 6th defendant to concede
the suit claim, he could have done so as contemplated by Order X CPC by
appearance without need of filing any written statement, but for to show a
colourable contest and disposal if any and for reasons better known.
6. The trial Court pursuant to the written statement though practically
no issues arise for no dispute involved from the said written statement of
the 6th defendant by showing as if defendant Nos.1 to 5 and 7 to 102
remained ex parte, practically ignoring the factum of there is no service
much less personally on the defendant Nos.1 to 5 and 7 to 102, formulated
and settled the issues as to the plaintiffs are entitled to declaration of
1st plaintiff is absolute owner of the suit property and entitled to perpetual
injunction as prayed for and recorded the evidence of 1st plaintiff as PW.1
and one Ram Reddy as PW.2 and the 6th defendant as DW.1 and by
exhibiting 25 documents on behalf of plaintiffs with no documents on
behalf of 6th defendant under the colourable contest, decreed the suit on
20.09.2012.
7. The judgment though practically exparte, but for 6th defendant by
filing written statement conceding the suit claim with no contest
participated shown in the suit record as if a contest, refers at Para 2 gist of
the written statement of conceding the suit claim and at Para 12 the
evidence of DW.1-6th defendant in the cross examination saying he admits
the title and possession of plaintiffs and there is nothing to show E.Venkata
Swamy, the then president is competent to transfer the property, in the
absence of any resolution passed by General Body or approval by Managing
Committee, thereby relying on said evidence decreed the suit. As
discussed supra, it is practically an exparte decree, in particular so far as
defendant Nos.1 to 5 and 7 to 12 concerned.
8. It is pursuant to which on coming to know of said decree, the
respective petitioners i.e., 4th defendant in I.A.No.364/2014 and some of
the other defendants out of 102 defendants referred supra in
I.A.No.538/2014, filed the applications to set aside the impugned decree.
8(a). Their respective affidavit averments in nutshell show the suit was
presented on 03.06.2011 as can be seen from the record by showing
C/o. address of all defendants as if under 6th defendant though they have
their own permanent addresses with different families and different
residential houses in different places, with some malafide intention on the
part of the plaintiffs in showing wrong addresses, as if all other defendants
under C/o. address of D.6-Sudhakar Reddy though he is no way concerned
with any of the defendants, but for henchman of the plaintiffs in cause
serving summons and notices only on 6th defendant without any service on
defendant Nos.1 to 5 and 7 to 102 and by keeping them in dark and
managing to cause set them exparte in the suit on 07.11.2011. It is from
that collusion between the plaintiffs and 6th defendant in cause filing a
written statement in support of the false claim of plaintiffs by admitting
the suit claim through him and obtained a fraudulent and collusive decree.
8(b). It is further contest of 4th defendant that he is concerned with an
extent of Ac.10-35 guntas in survey No.55/AA and Ac.4-11 guntas in
S.No.28/A out of the plaint schedule property, which he purchased from
defendant Nos.1 to 3 for valuable consideration and divided the same into
house plots and converted the land into house plots and sold many of the
house plots to various persons out of it. While so on 08.08.2013, the
petitioner/D.4 was undertaking the work of levelling the land, the
plaintiffs came to the suit property and tried to obstruct the
4th defendant of his work by exhibiting the collusive decree, to his shock
and surprise. He immediately cause verified the matter and came to know
all these facts of their succeeding in getting a decree fraudulently and
under that guise, the plaintiffs want to occupy the property, which made
them to file the petition to set aside the said decree which is within time
of 30 days from the date of their knowledge for there is no service of
summons.
8(c). Similar affidavit contest of the 17th defendant on behalf of some of
the defendants referred supra in I.A.No.538 of 2014, he purchased house
plot of 500 square yards vide plot No.66 in S.No.28 from the 4th defendant
under registered sale deed of 2001, his grand son by name Pavan Kumar
Reddy purchased another 500 square yards vide plot No.65 in S.No.28 from
4th defendant in 2001, D.25-Ch.Sanjeeva purchased 500 square yards vide
plot No.65 in S.No.28 from 4th defendant in 2004, D.34-V.R.N.Reddy
purchased 1000 square yards covered by plot Nos.54 & 55 from
4th defendant in 2000 and also purchased 2 more plot Nos.98 & 99 of 1216
square yards in S.No.28 from 4th defendant in 2001 and D.34 subsequently
donated 1216 square yards of house plots to his daughter Smt. V.Namratha
Reddy vide gift settlement deed of 2012, D.45-Smt. G.V.V. Laxmi
purchased 300 square yards vide plot No.714/32 in S.No.28 from
4th defendant in 2004, D.51-J.Sathish purchased 300 square yards vide plot
No.714/37 in S.No.28 from 4th defendant in 2006, D.53-K.Santhosh
purchased 500 square yards vide plot No.965/1 in S.No.28 from
4th defendant in 2003, D.54-K.Uma Maheshwar purchased 500 square yards
vide plot No.966 in S.No.28 from 4th defendant in 2003, D.64-Pamu Kishor
Kumar purchased 500 square yards vide plot No.977 in S.No.28 from
4th defendant in 2001, D.65-Bandela Sudhakar Reddy purchased 500 square
yards vide plot No.978 in S.No.28 from 4th defendant in 2004, D.74-
G.Saraswathi purchased 500 square yards vide plot No.991 in S.No.55 from
4th defendant in 2004, D.75-G.Rajendar purchased 500 square yards vide
plot No.992 in S.No.55 from 4th defendant in 2004, D.81-D.Laxmi Narsaiah
purchased 500 square yards vide plot No.999 in S.No.55 from 4th defendant
in 2004, D.82-D.Lalitha purchased 500 square yards vide plot No.998 in
S.No.55 from 4th defendant in 2003, D.84-Ch.Venu Kumar purchased 500
square yards vide plot No.1004 in S.No.55 from 4th defendant in 2004,
D.85-M.Krishnaiah purchased 500 square yards vide plot No.1005 in S.No.55
from 4th defendant in 2004, D.86-D.Prabhakar Reddy purchased 500 square
yards vide plot No.1006 in S.No.55 from 4th defendant in 2004 and
D.87-P.Krishna Reddy purchased 500 square yards vide plot No.1007 in
S.No.55 from 4th defendant in 2004. It is therefrom sought for setting aside
the exparte decree saying it is a fraudulent one and obtained behind back
of the defendants and without service.
8(d). The counter affidavit filed by the 1st plaintiff in opposing the two
applications filed under Order 9 Rule 13 CPC are that, said averments
respectively are not correct, 6th defendant is the site manager of
defendant Nos.1 to 4 of Dandumalkapur. Several defendants purchased
lands from defendant Nos.1 to 4, and 6th defendant site manager is known
to all defendants and thereby plaintiffs mentioned for all defendants as
C/o. address of 6th defendant, who informed to all other defendants about
the suit filed and pending against them and 6th defendant refused to
receive summons as per the instructions of other defendants. It is further
contended that 1st plaintiff filed a criminal complaint in Choutuppal Police
Station against all defendants of the suit under Sections 447, 427 and 506
IPC pending as C.C.No.279/2011 from the police final report on the file of
Judicial First Class Magistrate Court, Ramannapet and they are defending
the criminal case by engaging advocates and there was a compromise of
the matter along with the suit claim in the police station with oral
assurance of not to interfere with the possession and enjoyment with the
suit property of the plaintiffs and thereby, the criminal complaint mentions
pending of the suit and the injunction orders passed and thereby they got
knowledge and some of the defendants filed suits for injunction in regard
to schedule property against the plaintiffs, which are pending on the file of
Junior Civil Judge, Ramannapet and Senior Civil Judge, Bhongir. It is
contended therefrom that all they got knowledge of the suit and the
decree passed therein from written statement contest of 6th defendant,
who also deposed as DW.1 and thereby it is not an exparte decree but for
contested decree. It is also averred that after passing of the decree,
plaintiffs alienated part of suit property to third parties, who made several
constructions with permission of Panchayat in the year 2013, and the
defendants have no manner of right in seeking for setting aside the decree
alleging as fraudulent decree and obtained deceitfully. It is further
averred that defendant Nos.1 and 2 given GPA to defendant Nos.3 and 4
and they in turn sold the property to other defendants and created revenue
records and bogus documents by managing revenue authorities and the
petition averments of the decree in question is collusive and fraudulent are
devoid of truth and the contested decree does not fall within the meaning
of exparte decree. It is the contest further that petitions to set aside the
decree must be filed within 30 days from the date of decree and the
petitions not so filed are barred by time and sought for dismissal of the
petitions for non-diligence.
9. It is pursuant to which by separate orders passed by the learned I
Additional District Judge, Nalgonda vide dated 02.08.2014 the petitions to
set aside exparte decree were dismissed with observation that, but for
6th defendant, other defendants remained ex parte and 6th defendant
contested by filing written statement and deposed as DW.1. The suit was
decreed on merits. From the counter contest in the two applications to set
aside the exparte decree invoking Order IX Rule 13 CPC, the
plaintiffs/respondents stated that they filed criminal complaint against all
the defendants in Choutuppal Police Station and police filed final report
and they were while defending by engaging advocates, there was a
compromise in the police station also regarding the suit claim with oral
assurance by defendants of not to interfere with the plaintiffs possession of
the suit property and thereby it cannot be said they have no knowledge
about the institution of the suit and obtaining of decree and in a decision
of the Madras High Court in P.Muthusamy and Another Vs. P.Sekar it was
held merely because some respondents were set exparte on account of
non-appearance, the decree cannot be construed as ex parte decree. Once
there is a contest judgment, Order IX Rule 13 CPC has no application and
the proposition applies to the case on hand from the counter averments
show the defendants/petitioners got knowledge of the suit and the decree
passed. The lack of knowledge stated by them in the applications cannot
be taken into consideration and the petitions are also barred by limitation.
The orders dismissing the applications are impugned in these two civil
miscellaneous appeals.
10. Heard learned counsel for the appellants respectively and also
learned counsel for the plaintiffs/contesting respondents and perused the
material on record.
11. As referred supra, even from the counter contest there is admittedly
no addresses of the defendants separately furnished and no summons to
any registered address of the defendants issued or obtained and there was
no even any service of notice and it is the counter contest saying the
6th defendant to whose C/o. address summons of all defendants sent,
refused to receive and therefrom they were set exparte and only
6th defendant filed written statement and deposed as DW.1 and thereby it
is the contention of not an exparte decree but a contest decree and Order
IX Rule 13 CPC has no application. The said contention is baseless on its
face. As contended by the defendants in their applications to set aside the
exparte decree and perusal of the factual matrix from the material on
record referred supra, it clearly shows nothing but a collusive and
fraudulent decree obtained behind the back of the defendant Nos.1 to 5
and 7 to 102. Once as referred supra from Order VII and Order VI CPC it is
the duty of the plaintiff to furnish in the full cause title and separate and
independent addresses which are known as registered address for service of
all the defendants and the same was not furnished and even from the
counter averments of the summons taken only to the C/o. address of
6th defendant, who refused to receive and not a case of taking notice to
the individual addresses of any of the defendants other than 6th defendant
among defendant Nos.1 to 102 and not even an averment of all they are
residing in the premises of the 6th defendant even to say any of their
refusal to set exparte of all of them for refusal by 6th defendant. The trial
Court should not have been set them exparte but for ordering fresh notice
to correct address. It is the fundamental principle from the latin maxim
actus curiae neminem gravabit that act of court shall prejudice no man
unless sanctioned by law. Such a recourse without any sanction by law for
the trial Court either to number the plaint without furnishing in full cause
tile of all the defendants their present residential address which is their
registered address for service of summons on all the defendants and even
numbered, duty of Court to see with a direction to furnish the registered
addresses respectively of all to serve individually even to set exparte later
only on proof of service to the respective registered address to each of the
defendants, that was not done and even the only other remedy statutorily
open to the Court as referred supra is to stay the suit proceedings till
furnishing of correct registered address of all the defendants and instead,
the trial Court went wrong and committed an illegality in setting the
defendants exparte without even taking notice of the factum of no
summons taken to the defendants to their respective individual addresses
and there was no service or even deemed service on any of the defendants
other than 6th defendant to set exparte. It is totally ignored by the trial
Court of not even a case 6th defendant is an agent recognized for any of the
defendants to take the summons to the C/o. address of him. In the
absence of which, a combined reading of Orders III & V CPC no way
contemplates of service of summons of other defendants on the
6th defendant and to treat his refusal on behalf of defendant Nos.1 to 102
as if a sufficient service to set the defendants exparte.
12. Once the necessary facts brought to the notice of the trial Court,
which clearly proves the fraud played by the plaintiffs, for no Court to
perpetrate the same, the trial Court should have been set aside the decree
passed without service of summons against the defendants, that too when
they sought for by invoking inherent power which inheres in every Court
from its very constitution with all its elasticity to the necessity to sub serve
the ends of justice and to prevent abuse of process. The trial Court
instead of doing so, committed further wrong in saying as if filing a
criminal complaint or mentioning about filing a suit constitutes knowledge
about the suit proceedings and as if therefrom duty caste on the alleged
accused of the criminal complaint to appear before any civil Court by
making an enquiry from the suit number even furnished and to appear and
participate. Same is not contemplated by law as an obligation or a duty by
any stretch of imagination for the trial court to went to such a conclusion
from such a baseless contention raised in the counter of the plaintiffs in
opposing the applications to set aside the ex parte decree.
13. As held by this Court in Maganti Kanaka Durga Vs. Maganti Anil
Kumar , the decree passed by the trial Court is nothing but an ex parte
decree for all the defendants other than the 6th defendant who colluded
with plaintiffs by colourable contest conceding the suit claim including in
his evidence participated to show as if it is a contested decree and it is not
contemplation of law to consider the decree as a contested decree and
thereby it is nothing but practically an exparte decree and the trial Court
totally ignored this aspect also in dismissing the applications. Further,
when Order IX Rule 13 CPC says within 30 days from the date of knowledge
the decree can be sought to set aside exparte, it is unknown how the trial
Court could come to the conclusion of the applications are filed beyond 30
days of knowledge from nothing proved from record to attribute knowledge
before. Thereby the finding of the applications are barred by limitation is
also unsustainable for absence of any material and in the absence of such
showing even by the respondents/plaintiffs.
14. Having regard to above, the exparte decree passed by the trial Court
in the suit not only against respective defendants applicants but also
against all other defendants is liable to be set aside in toto for no service
of summons other than against 6th defendant.
15. Accordingly and in the result, the C.M.A.Nos.825 & 826 of 2014 are
allowed by setting aside the dismissal orders of the trial court dated
02.08.2014 in I.A.Nos.364 & 538 of 2014 and by allowing the petitions
I.A.Nos.364 & 538 of 2014. The trial Court is directed consequently to
restore the suit and treat the evidence recorded behind the back of the
defendants with no value to use in future. The defendant Nos.4, 17, 34,
45, 51, 54, 64, 75, 81, 84 to 87 are directed to appear before the trial
Court within one month from the date of receipt of this order and file their
written statement/s within 15 days thereafter. The trial Court has to
proceed further according to law after recording the appearance of the
respective petitioners/defendants herein and by ordering summons to all
other defendants to their correct addresses to be furnished by plaintiffs.
Pending Miscellaneous Petitions if any in C.M.A.Nos.825 & 826 of
2014 shall stand closed. No order as to costs.
_____________________
JUSTICE SANJAY KUMAR
___________________________
JUSTICE Dr. B.SIVA SANKARA RAO
Date:04.07.2016
C.M.A.Nos.825 of 2014 and batch
04-07-2016
M/s.Bhargavi Real Estates Private Limited Petitioner
Kolanu Janardhana Reddy and others .Respondents
Counsel for the petitioners:Sri M.V.S. Suresh Kumar
Counsel for the respondents:Sri M. Achutha Reddy
<GIST:
>HEAD NOTE:
? Cases referred
1. AIR 2009 (NOC) 921 (MAD.)
2. (2015) 5 ALD 375
HONBLE SRI JUSTICE SANJAY KUMAR
AND
HONBLE DR. JUSTICE B. SIVA SANKARA RAO
C.M.A.Nos.825 & 826 of 2014
COMMON JUDGMENT: (Per Honble Sri Justice Dr. B. Siva Sankara Rao)
The appellant in CMA.No.825 of 2014 was the 4th defendant in
O.S.No.22 of 2011 on the file of I Additional District Judge, Nalgonda. The
appellant Nos.1 to 12 of CMA.No.826 of 2014 are the defendant Nos.17, 34,
45, 51, 54, 64, 75, 81, 84 to 87 in the above mentioned suit. The
4th defendant as petitioner in I.A.No.364 of 2014 and the other defendants
supra as petitioners in I.A.No.538 of 2014 maintained two applications
against the two plaintiffs by name K.Janardhan Reddy and Kolanu Rama
Swamy Reddy Memorial Trust, represented by said K.Janardhan Reddy and
by showing the other defendants out of 102 defendants in O.S.No.22 of
2011 as co-respondents, to set aside exparte decree dated 20.09.2012
passed against them respectively and permit them to contest the suit by
filing written statement.
2. The plaintiffs supra filed the suit against 102 defendants mentioned
supra for the reliefs of declaration of 1st plaintiff is absolute owner of the
plaint schedule property with consequential permanent injunction
restraining the defendants from interfering with so called possession of the
plaintiff over the plaint schedule property consisting of Ac.24-03 guntas
agricultural dry land in S.Nos.28/A of Ac.4-11 guntas, 55/AA of Ac.10-35
guntas and 65/A of Ac.8-37 guntas of Dandumalkapur Village of Choutuppal
Mandal, Nalgonda District within the boundaries prescribed respectively in
the schedule. In the array of the plaint as also can be seen from the copy
of plaint and the trial Courts decree dated 20.09.2012 in question, there is
nothing to show any of the 102 defendants are represented by any of the
power of attorney holders or agents. There is no separate address given to
any of the 102 defendants in the plaint long cause title as contemplated by
Order VII Rule 1 (b) & (c) CPC, but for showing as if all are C/o. S. Sudhakar
Reddy (6th defendant Manager, GM City, Dandumalkapur Village,
Choutuppal Mandal, Nalgonda District). There is no such description
contemplated to furnish so vaguely even from reading of clause (c) of
Order VII Rule 1 CPC and in fact Order VI Rule 14 A CPC mandates that the
pleadings filed by a party shall be accompanied in the statement by a
prescribed form, as provided in Rule 14, regarding the address of the party.
3. Order VI Rule 14 A CPC is as follows:
14A. Address for service of notice: (1) Every pleading,
when filed by a party, shall be accompanied by a statement in the
prescribed form, signed as provided in rule 14, regarding the
address of the party.
(2) Such address may, from time to time, be changed by lodging in
Court a form duly filled up and stating the new address of the party
and accompanied by a verified petition.
(3) The address furnished in the statement made sub-rule (1) shall
be called the "registered address" of the party, and shall, until duly
changed as aforesaid, be deemed to be the address of the party for
the purpose of service of all processes in the suit of in any appeal
from any decree or order therein made and for the purpose of
execution, and shall hold good, subject as aforesaid, for a period of
two years after the final determination of the cause or matter.
(4) Service of any process may be effected upon a party at his
registered address in all respects as though such party resided there
at.
(5) Where the registered address of a party is discovered by the
court to be incomplete, false or fictitious, the Court may, either on
its own motion, or on the application of any party, order
(a) in the case where such registered address was furnished
by a plaintiff, stay of the suit, or
(b) in the case where such registered address was furnished
by a defendant, his be struck out and he be placed in the same
position as if he had not put up and defence.
(6) Where a suit is stayed or a defence is struck out under sub- rule
(5), the plaintiff or, as the case may be, the defendant may, after
furnishing his true address, apply to the Court for an order to set
aside the order of stay or, as the case may be, the order striking
out the defence.
(7) the Court, if satisfied that the party was prevented by any
sufficient cause from filing the true address at the proper time,
shall set aside the order of stay or order striking out the defence,
on such term as to costs or otherwise as it thinks fit and shall
appoint a day for proceeding with the suit or defence, as the case
may be.
(8) Nothing in this rule shall prevent the Court from directing the
service of a process at any other address, if, for any reason, it
thinks fit to do so.
4. From reading of the Order VI Rule 14 A CPC supra, it is the duty of
the plaintiff while filing the plaint to furnish the registered addresses of
each of the defendants for purpose of service of all process in the suit with
any change of address known from time to time so as to effect the service
on the party respectively at the registered address for filing process to that
address. In fact, Sub Rule 5 of Order VI Rule 14 A CPC even shows not only
duty of the party from above but also duty of the Court that where the
address is incomplete or false or fictitious, the court may either on its own
motion or an application of any party where it is the plaintiff furnished the
address to stay the suit and where the address by the defendants, to struck
off his defence as if he did not put forth his defence and it is only after
furnishing the true and correct address to enable the party to apply to the
Court for an order to set aside the order of stay or order striking out the
defence, that too on showing to the satisfaction of the Court of party was
prevented by a sufficient cause from filing true address at the proper time,
leave about the power of Court to direct service of process at any other
source which it thinks fit from further reading of sub rules 6 to 8 of
Order VI Rule 14 A CPC supra. The plaint ought not to have been numbered
from the mandatory requirements for registered address required to be
furnished is not furnished with each of the defendants name, fathers name
and address to serve the process for securing appearance. Even numbered,
the Court could not have been allowed without furnishing the correct
address, to proceed with the matter for non-furnishing of the registered
address but for to stay the suit proceedings till such furnishing. It was not
done in the case on hand. It appears only on the C/o. address notice
served on the 6th defendant and there is no service individually much less
to the acknowledgment with proof on other defendants 1 to 102 other than
6th defendant supra respectively i.e., required for service contemplated by
Order V CPC either on the defendants or his agent if any duly recognized
contemplated by Order III CPC particularly Rule 6 of Order III CPC. It is not
even a pleading much less shown in the plaint anywhere including the long
cause title or short cause title of 6th defendant is agent as contemplated by
Order III Rule 6 CPC for other defendants among 1 to 102 supra. It is
pursuant to the service on 6th defendant, it appears he filed written
statement before the trial Court. The 6th defendant received the summons
only for himself and refused to receive the summons sent to him for other
defendants as in his care of address. It is not even the case of all other
defendants are residing with and in same premises of 6th defendant so to
mention or for the summons returned as refused by 6th defendant.
Therefrom also there are no summons served and the trial Court could not
set exparte all other defendants, but for directing to take notice afresh to
correct address by so furnishing. It is a wrong committed by the trial court
thereby in setting them exparte by unmindful of the provisions and fallen
pray to the deception of the plaintiffs on the Court.
5. The plaint filed was in June 2011 and the written statement of the
6th defendant filed was in the 1st week of August 2011, through his
advocate, that too while admitting the plaint contents as if 1st plaintiff is
absolute owner of the suit schedule property in saying 1st plaintiff
purchased from Cooperative Tenant Farming Society, Malkapur, to which
he was a member for valuable consideration and in possession and by
admitting other plaint averments as true including Para 8 and 9 saying
defendant Nos.7 to 102 have paid money for house sites to defendant Nos.1
to 5 and demanded the site manager to locate their plots in suit schedule
property, which is in the possession of the 2nd plaintiff and also by saying
plaint Para 10 averments of plaint are all true, however ultimately in
saying to dismiss the suit with costs. If at all the 6th defendant to concede
the suit claim, he could have done so as contemplated by Order X CPC by
appearance without need of filing any written statement, but for to show a
colourable contest and disposal if any and for reasons better known.
6. The trial Court pursuant to the written statement though practically
no issues arise for no dispute involved from the said written statement of
the 6th defendant by showing as if defendant Nos.1 to 5 and 7 to 102
remained ex parte, practically ignoring the factum of there is no service
much less personally on the defendant Nos.1 to 5 and 7 to 102, formulated
and settled the issues as to the plaintiffs are entitled to declaration of
1st plaintiff is absolute owner of the suit property and entitled to perpetual
injunction as prayed for and recorded the evidence of 1st plaintiff as PW.1
and one Ram Reddy as PW.2 and the 6th defendant as DW.1 and by
exhibiting 25 documents on behalf of plaintiffs with no documents on
behalf of 6th defendant under the colourable contest, decreed the suit on
20.09.2012.
7. The judgment though practically exparte, but for 6th defendant by
filing written statement conceding the suit claim with no contest
participated shown in the suit record as if a contest, refers at Para 2 gist of
the written statement of conceding the suit claim and at Para 12 the
evidence of DW.1-6th defendant in the cross examination saying he admits
the title and possession of plaintiffs and there is nothing to show E.Venkata
Swamy, the then president is competent to transfer the property, in the
absence of any resolution passed by General Body or approval by Managing
Committee, thereby relying on said evidence decreed the suit. As
discussed supra, it is practically an exparte decree, in particular so far as
defendant Nos.1 to 5 and 7 to 12 concerned.
8. It is pursuant to which on coming to know of said decree, the
respective petitioners i.e., 4th defendant in I.A.No.364/2014 and some of
the other defendants out of 102 defendants referred supra in
I.A.No.538/2014, filed the applications to set aside the impugned decree.
8(a). Their respective affidavit averments in nutshell show the suit was
presented on 03.06.2011 as can be seen from the record by showing
C/o. address of all defendants as if under 6th defendant though they have
their own permanent addresses with different families and different
residential houses in different places, with some malafide intention on the
part of the plaintiffs in showing wrong addresses, as if all other defendants
under C/o. address of D.6-Sudhakar Reddy though he is no way concerned
with any of the defendants, but for henchman of the plaintiffs in cause
serving summons and notices only on 6th defendant without any service on
defendant Nos.1 to 5 and 7 to 102 and by keeping them in dark and
managing to cause set them exparte in the suit on 07.11.2011. It is from
that collusion between the plaintiffs and 6th defendant in cause filing a
written statement in support of the false claim of plaintiffs by admitting
the suit claim through him and obtained a fraudulent and collusive decree.
8(b). It is further contest of 4th defendant that he is concerned with an
extent of Ac.10-35 guntas in survey No.55/AA and Ac.4-11 guntas in
S.No.28/A out of the plaint schedule property, which he purchased from
defendant Nos.1 to 3 for valuable consideration and divided the same into
house plots and converted the land into house plots and sold many of the
house plots to various persons out of it. While so on 08.08.2013, the
petitioner/D.4 was undertaking the work of levelling the land, the
plaintiffs came to the suit property and tried to obstruct the
4th defendant of his work by exhibiting the collusive decree, to his shock
and surprise. He immediately cause verified the matter and came to know
all these facts of their succeeding in getting a decree fraudulently and
under that guise, the plaintiffs want to occupy the property, which made
them to file the petition to set aside the said decree which is within time
of 30 days from the date of their knowledge for there is no service of
summons.
8(c). Similar affidavit contest of the 17th defendant on behalf of some of
the defendants referred supra in I.A.No.538 of 2014, he purchased house
plot of 500 square yards vide plot No.66 in S.No.28 from the 4th defendant
under registered sale deed of 2001, his grand son by name Pavan Kumar
Reddy purchased another 500 square yards vide plot No.65 in S.No.28 from
4th defendant in 2001, D.25-Ch.Sanjeeva purchased 500 square yards vide
plot No.65 in S.No.28 from 4th defendant in 2004, D.34-V.R.N.Reddy
purchased 1000 square yards covered by plot Nos.54 & 55 from
4th defendant in 2000 and also purchased 2 more plot Nos.98 & 99 of 1216
square yards in S.No.28 from 4th defendant in 2001 and D.34 subsequently
donated 1216 square yards of house plots to his daughter Smt. V.Namratha
Reddy vide gift settlement deed of 2012, D.45-Smt. G.V.V. Laxmi
purchased 300 square yards vide plot No.714/32 in S.No.28 from
4th defendant in 2004, D.51-J.Sathish purchased 300 square yards vide plot
No.714/37 in S.No.28 from 4th defendant in 2006, D.53-K.Santhosh
purchased 500 square yards vide plot No.965/1 in S.No.28 from
4th defendant in 2003, D.54-K.Uma Maheshwar purchased 500 square yards
vide plot No.966 in S.No.28 from 4th defendant in 2003, D.64-Pamu Kishor
Kumar purchased 500 square yards vide plot No.977 in S.No.28 from
4th defendant in 2001, D.65-Bandela Sudhakar Reddy purchased 500 square
yards vide plot No.978 in S.No.28 from 4th defendant in 2004, D.74-
G.Saraswathi purchased 500 square yards vide plot No.991 in S.No.55 from
4th defendant in 2004, D.75-G.Rajendar purchased 500 square yards vide
plot No.992 in S.No.55 from 4th defendant in 2004, D.81-D.Laxmi Narsaiah
purchased 500 square yards vide plot No.999 in S.No.55 from 4th defendant
in 2004, D.82-D.Lalitha purchased 500 square yards vide plot No.998 in
S.No.55 from 4th defendant in 2003, D.84-Ch.Venu Kumar purchased 500
square yards vide plot No.1004 in S.No.55 from 4th defendant in 2004,
D.85-M.Krishnaiah purchased 500 square yards vide plot No.1005 in S.No.55
from 4th defendant in 2004, D.86-D.Prabhakar Reddy purchased 500 square
yards vide plot No.1006 in S.No.55 from 4th defendant in 2004 and
D.87-P.Krishna Reddy purchased 500 square yards vide plot No.1007 in
S.No.55 from 4th defendant in 2004. It is therefrom sought for setting aside
the exparte decree saying it is a fraudulent one and obtained behind back
of the defendants and without service.
8(d). The counter affidavit filed by the 1st plaintiff in opposing the two
applications filed under Order 9 Rule 13 CPC are that, said averments
respectively are not correct, 6th defendant is the site manager of
defendant Nos.1 to 4 of Dandumalkapur. Several defendants purchased
lands from defendant Nos.1 to 4, and 6th defendant site manager is known
to all defendants and thereby plaintiffs mentioned for all defendants as
C/o. address of 6th defendant, who informed to all other defendants about
the suit filed and pending against them and 6th defendant refused to
receive summons as per the instructions of other defendants. It is further
contended that 1st plaintiff filed a criminal complaint in Choutuppal Police
Station against all defendants of the suit under Sections 447, 427 and 506
IPC pending as C.C.No.279/2011 from the police final report on the file of
Judicial First Class Magistrate Court, Ramannapet and they are defending
the criminal case by engaging advocates and there was a compromise of
the matter along with the suit claim in the police station with oral
assurance of not to interfere with the possession and enjoyment with the
suit property of the plaintiffs and thereby, the criminal complaint mentions
pending of the suit and the injunction orders passed and thereby they got
knowledge and some of the defendants filed suits for injunction in regard
to schedule property against the plaintiffs, which are pending on the file of
Junior Civil Judge, Ramannapet and Senior Civil Judge, Bhongir. It is
contended therefrom that all they got knowledge of the suit and the
decree passed therein from written statement contest of 6th defendant,
who also deposed as DW.1 and thereby it is not an exparte decree but for
contested decree. It is also averred that after passing of the decree,
plaintiffs alienated part of suit property to third parties, who made several
constructions with permission of Panchayat in the year 2013, and the
defendants have no manner of right in seeking for setting aside the decree
alleging as fraudulent decree and obtained deceitfully. It is further
averred that defendant Nos.1 and 2 given GPA to defendant Nos.3 and 4
and they in turn sold the property to other defendants and created revenue
records and bogus documents by managing revenue authorities and the
petition averments of the decree in question is collusive and fraudulent are
devoid of truth and the contested decree does not fall within the meaning
of exparte decree. It is the contest further that petitions to set aside the
decree must be filed within 30 days from the date of decree and the
petitions not so filed are barred by time and sought for dismissal of the
petitions for non-diligence.
9. It is pursuant to which by separate orders passed by the learned I
Additional District Judge, Nalgonda vide dated 02.08.2014 the petitions to
set aside exparte decree were dismissed with observation that, but for
6th defendant, other defendants remained ex parte and 6th defendant
contested by filing written statement and deposed as DW.1. The suit was
decreed on merits. From the counter contest in the two applications to set
aside the exparte decree invoking Order IX Rule 13 CPC, the
plaintiffs/respondents stated that they filed criminal complaint against all
the defendants in Choutuppal Police Station and police filed final report
and they were while defending by engaging advocates, there was a
compromise in the police station also regarding the suit claim with oral
assurance by defendants of not to interfere with the plaintiffs possession of
the suit property and thereby it cannot be said they have no knowledge
about the institution of the suit and obtaining of decree and in a decision
of the Madras High Court in P.Muthusamy and Another Vs. P.Sekar it was
held merely because some respondents were set exparte on account of
non-appearance, the decree cannot be construed as ex parte decree. Once
there is a contest judgment, Order IX Rule 13 CPC has no application and
the proposition applies to the case on hand from the counter averments
show the defendants/petitioners got knowledge of the suit and the decree
passed. The lack of knowledge stated by them in the applications cannot
be taken into consideration and the petitions are also barred by limitation.
The orders dismissing the applications are impugned in these two civil
miscellaneous appeals.
10. Heard learned counsel for the appellants respectively and also
learned counsel for the plaintiffs/contesting respondents and perused the
material on record.
11. As referred supra, even from the counter contest there is admittedly
no addresses of the defendants separately furnished and no summons to
any registered address of the defendants issued or obtained and there was
no even any service of notice and it is the counter contest saying the
6th defendant to whose C/o. address summons of all defendants sent,
refused to receive and therefrom they were set exparte and only
6th defendant filed written statement and deposed as DW.1 and thereby it
is the contention of not an exparte decree but a contest decree and Order
IX Rule 13 CPC has no application. The said contention is baseless on its
face. As contended by the defendants in their applications to set aside the
exparte decree and perusal of the factual matrix from the material on
record referred supra, it clearly shows nothing but a collusive and
fraudulent decree obtained behind the back of the defendant Nos.1 to 5
and 7 to 102. Once as referred supra from Order VII and Order VI CPC it is
the duty of the plaintiff to furnish in the full cause title and separate and
independent addresses which are known as registered address for service of
all the defendants and the same was not furnished and even from the
counter averments of the summons taken only to the C/o. address of
6th defendant, who refused to receive and not a case of taking notice to
the individual addresses of any of the defendants other than 6th defendant
among defendant Nos.1 to 102 and not even an averment of all they are
residing in the premises of the 6th defendant even to say any of their
refusal to set exparte of all of them for refusal by 6th defendant. The trial
Court should not have been set them exparte but for ordering fresh notice
to correct address. It is the fundamental principle from the latin maxim
actus curiae neminem gravabit that act of court shall prejudice no man
unless sanctioned by law. Such a recourse without any sanction by law for
the trial Court either to number the plaint without furnishing in full cause
tile of all the defendants their present residential address which is their
registered address for service of summons on all the defendants and even
numbered, duty of Court to see with a direction to furnish the registered
addresses respectively of all to serve individually even to set exparte later
only on proof of service to the respective registered address to each of the
defendants, that was not done and even the only other remedy statutorily
open to the Court as referred supra is to stay the suit proceedings till
furnishing of correct registered address of all the defendants and instead,
the trial Court went wrong and committed an illegality in setting the
defendants exparte without even taking notice of the factum of no
summons taken to the defendants to their respective individual addresses
and there was no service or even deemed service on any of the defendants
other than 6th defendant to set exparte. It is totally ignored by the trial
Court of not even a case 6th defendant is an agent recognized for any of the
defendants to take the summons to the C/o. address of him. In the
absence of which, a combined reading of Orders III & V CPC no way
contemplates of service of summons of other defendants on the
6th defendant and to treat his refusal on behalf of defendant Nos.1 to 102
as if a sufficient service to set the defendants exparte.
12. Once the necessary facts brought to the notice of the trial Court,
which clearly proves the fraud played by the plaintiffs, for no Court to
perpetrate the same, the trial Court should have been set aside the decree
passed without service of summons against the defendants, that too when
they sought for by invoking inherent power which inheres in every Court
from its very constitution with all its elasticity to the necessity to sub serve
the ends of justice and to prevent abuse of process. The trial Court
instead of doing so, committed further wrong in saying as if filing a
criminal complaint or mentioning about filing a suit constitutes knowledge
about the suit proceedings and as if therefrom duty caste on the alleged
accused of the criminal complaint to appear before any civil Court by
making an enquiry from the suit number even furnished and to appear and
participate. Same is not contemplated by law as an obligation or a duty by
any stretch of imagination for the trial court to went to such a conclusion
from such a baseless contention raised in the counter of the plaintiffs in
opposing the applications to set aside the ex parte decree.
13. As held by this Court in Maganti Kanaka Durga Vs. Maganti Anil
Kumar , the decree passed by the trial Court is nothing but an ex parte
decree for all the defendants other than the 6th defendant who colluded
with plaintiffs by colourable contest conceding the suit claim including in
his evidence participated to show as if it is a contested decree and it is not
contemplation of law to consider the decree as a contested decree and
thereby it is nothing but practically an exparte decree and the trial Court
totally ignored this aspect also in dismissing the applications. Further,
when Order IX Rule 13 CPC says within 30 days from the date of knowledge
the decree can be sought to set aside exparte, it is unknown how the trial
Court could come to the conclusion of the applications are filed beyond 30
days of knowledge from nothing proved from record to attribute knowledge
before. Thereby the finding of the applications are barred by limitation is
also unsustainable for absence of any material and in the absence of such
showing even by the respondents/plaintiffs.
14. Having regard to above, the exparte decree passed by the trial Court
in the suit not only against respective defendants applicants but also
against all other defendants is liable to be set aside in toto for no service
of summons other than against 6th defendant.
15. Accordingly and in the result, the C.M.A.Nos.825 & 826 of 2014 are
allowed by setting aside the dismissal orders of the trial court dated
02.08.2014 in I.A.Nos.364 & 538 of 2014 and by allowing the petitions
I.A.Nos.364 & 538 of 2014. The trial Court is directed consequently to
restore the suit and treat the evidence recorded behind the back of the
defendants with no value to use in future. The defendant Nos.4, 17, 34,
45, 51, 54, 64, 75, 81, 84 to 87 are directed to appear before the trial
Court within one month from the date of receipt of this order and file their
written statement/s within 15 days thereafter. The trial Court has to
proceed further according to law after recording the appearance of the
respective petitioners/defendants herein and by ordering summons to all
other defendants to their correct addresses to be furnished by plaintiffs.
Pending Miscellaneous Petitions if any in C.M.A.Nos.825 & 826 of
2014 shall stand closed. No order as to costs.
_____________________
JUSTICE SANJAY KUMAR
___________________________
JUSTICE Dr. B.SIVA SANKARA RAO
Date:04.07.2016
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.